{3:18 minutes to read} In Part 1 of this series, we looked at parental considerations in relation to a child’s college education. In Part 2, we will define typical college expenses and look at limits on what a parent will contribute.

How do you define “college expenses?

Is it just tuition, room and board, or do you want to consider other typical expenses that will be due?

In addition to tuition and room and board, most parents include a provision to share:

• Required books, materials and supplies;
• Laboratory, library, student and athletic fees and equipment;
• A computer and printer;
• Off campus housing;
• University and activity fees; and
• Reasonable transportation expenses.

Will you pay any expenses related to college applications or testing?

How do you pay for SAT courses, college applications and visiting colleges?

Most parents agree to share in application and testing fees, including SAT related courses. They may also agree to share the costs for visiting colleges, but with a limit as to how many colleges will be visited.

Should there be a limitation on how much a parent would be required to pay (a SUNY cap?)

Do you think that, no matter the cost, you are willing to pay for the school that your child seeks to attend?

Whether the child attends a State University of New York University (SUNY) or a private school, parents may want to limit responsibility to the charges at a SUNY school at the time the child enters college, in addition to the other fees defined as college expenses. You should also research and specify the exact SUNY college that will be used as the measure.

How to apply money already saved?

Does only one of you get a “credit” for college money provided by that person’s parents?

In the final post of this series, we will discuss the child’s role with regard to their college education and any credits against child support.

{4:00 minutes to read} Certain children’s expenses must be paid in addition to child support, according to the child support statute: medical insurance premiums, unreimbursed medical expenses and child care expenses. These are mandatory add-ons.

Then, there are expenses that may be ordered at or in the Court’s discretion, including post-secondary educational expenses. The Court will consider the parties’ circumstances and what is in the best interest of the child at the time the child would be entering college.

Because it’s not a mandatory add-on, clients may think it’s not necessary to discuss college costs, but that could leave a very big issue undecided and subject to future dispute. So, while you are in the process of addressing a myriad of terms while mediating your divorce, it makes sense to include a discussion about college.

Below are some items you should consider before you begin to discuss this issue in mediation.

Should there be a parental contribution at all?

If at all possible, a decision on this question should not be left open-ended. Doing that can result in a possible dispute in the future, so be as detailed as you possibly can. You can:

• Provide for a monthly or yearly contribution to a 529 Plan;
• Agree to take out a loan or co-sign your child’s loan;
• Designate some of the funds to be used for college if a marital home is to be sold.

Realistically, does your financial circumstance permit you to do so, even if you agree that contribution would be a good thing?

If your situation is such that one or both of you are unable to make any commitment at this time, you can include language that provides you will address it when the child is about to enter college. But the agreement should be clear as to what you will consider in terms of financial circumstances (assets, income, expenses, debt) to decide how much each can contribute. You also want to detail a process to follow, such as mediation first and then the right to go to court if you can’t agree.

Philosophically, do you believe that you should pay for college?

Or, if you feel that you either financially or philosophically do not want to commit to paying for college, then you can provide that any payment would be voluntary, and that neither of you can compel the other to contribute to college expenses.

How do you share the parental contribution?

Should it be paid by you both equally or pro rata to income?

Typically, parents agree that the contribution will be shared pro rata to their incomes at the time that the child is entering college. Others will consider this as an expense to be shared equally, no matter their incomes. Consider, though, if a party voluntarily stops working, you might want a way to determine what income should be imputed to that party, such as an average of past income or his/her income just prior to retirement.

In Part 2 of this series, we will define typical college expenses and look at limits on what a parent will contribute.

{4:00 minutes to read} I often caution clients against including language in their agreement which is basically just an agreement to agree: anything that begins with “The parties will agree upon...” or “The parties agree to review...” But it depends on the issue and on the couple.

Sometimes it makes sense not to spend an enormous amount of time either on something that is not all that contentious or something not likely to happen. Other times, though, leaving big decisions for the future is just putting off an inevitable conflict that should be addressed now.

Here are some examples of terms that may or may not need to be spelled out completely, depending on the term and the couple.

Hours of Access and Holiday Sharing

There are couples who are capable of having a parenting plan that leaves the hours for access on a particular day or the holiday schedule as “agreed upon.” Others clearly need to have exact hours for pick-up and drop-off as well as a detailed holiday plan to avoid future conflict.

Process for the Sale of a House

When discussing terms for the sale of a jointly owned home, I’ll ask the couple if they believe that they can agree upon a broker, a listing price, reductions to the prices, an accepted offer, etc. It’s obvious that some will have no problem with “as agreed upon,” and equally obvious when the agreement needs to be detailed as to who the broker will be, how reductions will be made, and what offers must be accepted.

College

Future Income Tax Filings

If the parties expect to be married at the end of the year, we’ll discuss whether or not they will file a joint income tax return. Some couples can easily make that determination at the time of filing, but others may need to have a more detailed process for how that determination will be made.

No one can definitively predict what future circumstances will bring or what level of conflict will arise, but I do trust that the couple, especially those who choose to mediate, are capable of determining in what areas they anticipate conflict and in what areas they will be able to agree. Their agreement can then reflect that.

{3:36 minutes to read} I recently attended a panel discussion on how to determine income in a matrimonial mediation. The panel consisted of a litigator, a mediator and a financial professional. The idea was to show the different approaches each would take in cases where income was hard to determine, such as self-employed parties, cash income, other complicated financial situations, or when a party just refuses to disclose relevant information. That got me to thinking about disclosure in general and how it can evolve in mediation.

When a Financial Person is Needed

Even if someone isn’t actively trying to evade financial disclosure, there are some situations where the parties and the mediator need help in going through vast, complicated financial documents to determine a party’s actual income. In those cases, working with a financial neutral, preferably one who has been trained in mediation, is vital to help everyone understand that 50-page income tax return and complex financial statements.

Does It Matter How It’s Done?

Some Clients Need to Go to Court

Disclosure in mediation is voluntary in the sense that there are no subpoenas or court rulings. However, full disclosure is necessary in order to assure a comprehensive mediation and satisfactory outcome.

{3:48 minutes to read} While the history of a client’s relationship is obviously relevant to them, its relevance to the mediation is not necessarily the same. If there is a dispute as to whether or not an event occurred, my role is not to determine the truth. That would be in the realm of litigation.

In mediation, its relevance has to do with the effect that those beliefs about past events have on each party’s ability to work with the other in the process and reach a resolution. That is a difficult enough task, so I am grateful that I don’t need to resolve whether an event actually happened in the way one client believes it did or not.

Recently I dealt with one of the more difficult issues that arise in mediation, an affair. Unlike other mediations in which one party had an affair, this one was different because one party fervently believed her spouse had an affair, while the other just as adamantly denied it.

After hearing both parties speak, I made it clear that neither the process nor I would be able to, or even attempt to, determine the truth of the matter. Instead, I made sure that each party was understood, and then we moved on to proposals that would address the concerns that each had raised.

Being Heard

It was important for the wife not just to express the hurt she felt from being betrayed, but also the anger she felt at her husband’s continuous denials. She had what she believed to be incontrovertible evidence, and he was denying it as if she were delusional. So, on top of the hurt was what she perceived as an insult to her intelligence.

The husband felt tired of being wrongfully accused. He felt the victim of baseless allegations, and no matter how he tried to refute them, his wife would not believe him. He was also concerned that her extreme anger was filtering to the children and that eventually her accusations would be made in their presence. He wanted to move out to calm things down but he couldn’t see how that could be achieved financially.

Moving On

In response to my request for proposals going forward, the husband expressed how important it would be for them to physically separate, given how difficult it was to live in their present circumstances. While there were some difficult financial considerations that needed to be addressed, the wife was in agreement and made reasonable proposals as to how they could make it work. They both agreed to focus on the children and that it would be best for them to separate immediately. They also agreed upon how to tell the children he would be leaving and not to speak disparagingly to each other, in or out of the children’s presence.

So, while both parties were still unwilling to concede the point regarding the affair, they both realized that the other would never change their beliefs. After being heard, they each were able to get to a place where they could get past it and move forward.

{3:24 minutes to read} I thought it was interesting that the Personal Health columnist for the New York Times, Dr. Jane Brody, wrote a column entitled “The Right Way to Say I’m Sorry.”

She posits that taking responsibility for your actions and offering a true apology to someone you’ve hurt actually is a matter of your own health and well being. Dr. Brody refers to these words from Harriet Lerner’s Why Won’t You Apologize? as to why an apology can be “central to health, both physical and emotional.”

“...It’s also a gift to one’s own health, bestowing self-respect, integrity and maturity–an ability to take a clear-eyed look at how our behavior affects others and to assume responsibility for acting at another person’s expense.”

Of course, a sincere apology can also positively affect the health of the person to whom you are apologizing. Dr. Lerner provides that person is able to “feel soothed and released from obsessive recriminations, bitterness and corrosive anger.”

However, none of these benefits will emerge unless the apology is truly sincere. Here are some factors Dr. Brody believes make an apology meaningful:

• Do not include ‘but’ after your words of apology. This signifies that you are excusing the behavior for which you are proffering an apology.
• Do not request forgiveness since this is up to the person to forgive or not. Your apology should not be dependent upon forgiveness.
• Be sure to focus on what you are saying and your behavior, as opposed to what the other person says or her reaction to it.
• Avoid saying “I’m sorry you feel that way” since that is shifting fault from your actions to the other person for being overly sensitive.

It is hard to make a sincere apology, and yes, it does make you terribly vulnerable. You are admitting fault, admitting having hurt someone, and might even be opening yourself up to rejection.

But it’s a very big sign that you are accepting responsibility for your actions. If done with sincerity, it is something that will benefit you, even if you are not forgiven by the other person.

I can understand that, if you are going through a divorce, you might not want to offer an apology out of fear that you may “lose ground” and diminish a possible settlement. I can even understand the fear that your apology would be rejected or scorned.

I can’t say that won’t be the case, and probably more likely if you are in a litigation or adversarial process. However, if you truly believe that your actions warrant an apology, you might want to consider if this action could be a healthier alternative for both of you.

{3:24 minutes to read} One question that I’m asked by clients fairly often is, “Do you think I should accept this?” Or “Is it good for me to do x, y or z?” I understand why a client would ask. But, like the question, “Do you think that this is fair?” it’s not one that a mediator can answer (Fair is in the Eye of the Beholder].

It certainly seems expedient, especially if the couple just wants it all to be over. The mediator understands the facts and the law and is certainly capable of answering the question. So, why not?

Impartiality

If a mediator were to tell one party what she thinks that person should do, one of the parties likely would question whether or not the mediator was acting in a way that showed partiality to the other, especially if the determination was in the other’s favor. One of the basic tenets of mediation is that both parties have to feel that the mediator is not taking either person’s side. That is awfully hard to achieve if giving your opinion as to an outcome.

Now that is very different from helping a client evaluate an option. That process is necessary for clients to make a good decision. However, the decision part is one with which a mediator cannot help.

Which leads to another fundamental principle of mediation...

Self-Determination

Mediation relies upon parties making their own decisions after evaluating the possible outcomes. The mediator should help them make informed and voluntary decisions by:

• Helping them understand their own and the other’s needs and interests;
• Letting them know the professionals from whom they can obtain information and advice to help them make decisions;
• Reminding them that mediation is a voluntary process and they do not have to reach a decision in mediation;
• Staying away from influencing the parties one way or another to settle.

It’s also important that the mediator is not so focused on a settlement that she loses sight of the value of the process itself. The reaching of an outcome is on the parties, and not on the mediator. If the mediator tells a party what she thinks that person should do to resolve a dispute, that puts the outcome above the process.

So, I tell clients up front that if they ask me a question like that, they will not get an answer. And if they still ask the question, I remind them why I will not answer. Usually when I do, I see the look of understanding in their eyes, because they chose this process for that very reason: They didn’t want others to make decisions for them.

{3:48 minutes to read} Unfortunately, people who are getting divorced are not exempt from downsizing, market fluctuations, facility closings, etc. which can lead to a period of unemployment. How can divorcing couples factor in this development as they work through separating their households and assets? How do they cope with this monumental change in their lives, on top of this monumental change in their lifestyle?

If one of you is unemployed, it may not be entirely within your power to resolve the situation. If the unemployment has been for an extended period of time, or if you are older in a younger or no longer relevant industry, your concerns may be magnified.

Unemployment and the financial strain that comes with it likely played a role in the dynamics of your relationship. Those emotions, coupled with the practical need to discuss support when one person’s income is unknown, can make a resolution difficult in an adversarial situation.

Since mediation is a dialogue in which you both hear and understand the other, this is what can happen in mediation.

Address the Emotional Underpinnings

As with any personal crisis, there are emotional issues/responses that should be brought into the open and addressed.

The person who is unemployed can describe what it feels like to struggle looking for a job and be rejected. To take on a caretaking role that may be unfamiliar. To feel that he or she let the family down. To have either an unrealistically optimistic or pessimistic outlook on securing employment.

The other person can explain how it feels to be in the scary and unfamiliar position of being the sole breadwinner. To feel that he or she is responsible for the entire family and needs to juggle the anxiety of that burden with trying to not have the other person feel bad.

Work Together on a Resolution

I’ve seen that once these emotions are out there and understood, it’s then possible to discuss the practical aspects and create an agreement incorporating flexible future circumstances:

While they are limited, if clients are willing to work together, there are options to be discussed.

They can agree to use assets or incur debt for a certain period of time and then agree upon a payback plan once employment is secured.

If the other is able to solely take care of the finances individually, he or she can do that for a limited period of time.

If it’s a desire for only a certain type of employment, they can give the unemployed person a period of time to find employment that he or she prefers, and then if that is not achieved, that person would have to accept another type of employment.

Or they can even stay together until it is financially feasible to separate.

While unemployment can add a level of complexity to a divorce process, mediation will allow a couple to discuss the problem with sensitivity and arrive at a workable solution.

{3:54 minutes to read} I met recently with a couple (I’ll call them “Mary” and “John”) to review their Separation Agreement. All went well, with a few minor changes agreed upon during our meeting. Then, towards the end of the Agreement, a provision came up for review at which John expressed surprise.

Mary and I were perplexed. This had not only been discussed fully at a previous session, but over the course of several months, had appeared in writing in:

• A summary of the meeting;
• A summary of the terms agreed upon; and
• 1st, 2nd and 3rd drafts of the Agreement.

This was not a “legalese” provision that could be misunderstood, but a pretty straightforward sentence. While the provision was unusual, the language clearly represented what the couple had agreed upon in the original meeting.

At our review meeting, Mary was not willing to budge, because the issue had been long agreed upon. John became more angry at what he believed to be unreasonable behavior by Mary. Ultimately, he stormed out of the room (complete with door slam) and said he was taking the Agreement to an attorney.

In the aftermath of this, I tried to figure out what had happened to cause John to now be so upset:

1. Did I fail to explain the effect of this provision?
   I am confident that the couple had been in agreement. I recall that, because it was an unusual provision, I took time to make sure that they both understood its effect.
2. Was John trying to prevent the agreement from going forward so that they wouldn’t be divorced?
   No. They had both moved on and there would be financial benefits for both once the agreement was signed.
3. Was John trying to gain an advantage at the last minute?
   I really don’t believe so. He had agreed to far more substantial terms than this.
4. Had he not read the agreement?
   No, because I received many comments back from him between the drafts. I was confident he had read the agreement.

Ultimately, I received an email a few weeks later informing me that they reached a compromise, and they both signed the Agreement.

In retrospect, I can see how this could happen.

• Because I stress that until an Agreement is signed, clients are not bound by the terms. There may be a tendency to put off focusing on a certain detail because it’s not applicable at the moment.
• Needless to say, we discuss very personal, upsetting and complex matters in mediation, and this can affect perception and lead to a lack of recognition.
• And most importantly, the reality of the situation can occasionally hit someone unexpectedly. No matter how many times that something was discussed and reviewed, the impact of making that commitment is powerful.

• Attorney consultation;
• Financial divorce professional consultation;
• The internet;
• Their friend, hairdresser, cousin, sister or co-worker .

Some are clearly less reliable than others.

In fact, it’s rare for me to see clients who haven’t received some version of what they believe their rights and obligations under the law to be. This information can take on enormous importance to them if they believe it is “the law,” especially if it benefits them. Needless to say, when the information is inaccurate or is based upon a totally different set of facts and circumstances, it can lead to a mindset that is not particularly helpful in mediation.

At my initial consultation, I will let clients know that I want them to have all of the information they need in order to make good decisions, which includes information as to what the law provides.

I also let them know that when I provide legal information, it is based upon a range of circumstances likely to happen if they choose to go to court, emphasizing “likely.” I let them know that their attorneys can apply the same statute to the same set of facts and reach different conclusions, which could possibly both be different from mine.

I often describe the course book from the Annual Update on the Law provided by MatLaw. Recently, I still had the book in my office, since I had just attended the lecture the day before. Instead of describing this volume, I was able to show the clients the 600+ pages in a very small font, describing New York family law cases that had been decided in the past year.

I also let them know that, in terms of what the law provides, many cases reach contradictory results, even though they are based upon the same legal standard. Within that mass of cases, each of their attorneys would be able to find a basis for their conflicting positions.

Given all of that, I only tell clients what I believe is a likely range of outcomes in court. This means that I cannot definitively tell them what they will get if they go to court, but neither can any attorney 100% guarantee the outcome of a court trial.

To avoid being one of those many cases reported in the MatLaw coursebook 2 or 3 years from now, a couple can make an agreement that they believe will be best for them and their family.